Dismantling democracy through judicial activism
By Tom Jipping
web posted February 18, 2002
While Senate Democrats are blocking President Bush's judicial
appointments, guess who's minding the judicial store and guess
what are they up to? Liberal activist Clinton judges, that's who,
and they are up to no good.
Out on the left coast, for example, more than 70 per cent of the
full-time judges on the U.S. Court of Appeals for the Ninth
Circuit are Democrat appointees. Two of President Clinton's 14
appointees to that court are among his most radical ever and
they are busy dismantling what the people of California have
spent years building.
In 1994, nearly 72 per cent of California voters decided no
longer to treat perpetual criminals as if they were first-time
offenders. Instead, each additional felony would be treated more
seriously. They enacted the "Three Strikes" law requiring that a
third serious or violent felony would bring at least 25 years
behind bars.
Last November, Judge Richard Paez ruled that using this law to
do exactly as Californians intended violates the Constitution's
ban on cruel and unusual punishment. He insisted that the
sentence was "grossly disproportionate" to the crime, a standard
urged by only three Supreme Court Justices concurring in a
1991 case. But hey, it was all an activist needed to get where he
wanted to go.
Well, now fellow Clinton appointee Judge Marsha Berzon has
done the same thing in two cases. Earnest Bray had in the 1980s
been convicted of four counts of robbery. In one incident, a co-
defendant threatened to kill the woman they were robbing, and
actually fired three shots. In another robbery, his co-defendants
punched and kicked their victim.
Had he not chosen this criminal path, prosecutors could have
charged him with petty theft when Bray stole several videotapes
in March 1994. Instead, they charged him with felony petty theft
"with a prior." Conviction of this felony became his third strike
when added to his earlier robbery convictions. He received the
mandatory minimum of 25 years in prison.
Richard Brown had in the 1970s and 80s been convicted of at
least five serious or violent felonies including second degree
murder, assault with a deadly weapon, and robbery. He also had
a string of other convictions for felony vehicle theft, burglary,
battery, second-degree robbery, and possession of drug
paraphernalia.
Brown's life of crime had similar consequences for him. When
caught for shoplifting in 1995, prosecutors charged him with
petty theft with a prior.With three felony strikes, he too received
the mandatory minimum of 25 years in prison.
Joined by liberal activist extraordinaire Judge Stephen Reinhardt
and fellow Clinton appointee Judge A. Wallace Tashima, Judge
Berzon did the same thing her colleague Judge Paez had done
last fall. Going to prison for 25 years for petty theft or shoplifting
would, by itself, strike most people as a little much – or, in
legalese, "grossly disproportionate. Since neither of these career
criminals had received that sentence for that crime, however, she
had her work cut out for her.
Judge Berzon repeatedly said that petty theft itself, what she
called the "core conduct" of the crime for which Bray was
convicted, "is ordinarily punished by no more than six months in
jail." Indeed it is, but Bray had chosen to commit other crimes.
He chose the serious of crimes that resulted in his conviction for
petty theft "with a prior." That "with a prior" part is what takes
him outside the ordinary realm of first-time offenders receiving
slaps on the wrist.
Only by re-framing the facts in this case, by acting as if this were
a first-timer rather than a habitual felon, could Judge Berzon get
where she wanted to go. She's a true activist judge, making
things up and moving things around to achieve the result she
wants to reach. Like the case last year before Judge Paez, these
were brought by law professor Erwin Chemerinsky, a dedicated
leftist crusader willing to use the courts to thwart the democratic
choices of his fellow citizens. Activist lawyers and activist judges
are a potent combination, and here they are dismantling
democracy itself and putting the safety of law-abiding citizens at
risk.
This is the judicial legacy of Bill Clinton. With more than 100
judicial vacancies and more than 50 Bush nominees languishing in
the Democratic Senate, these Clinton activists are striking at will.
They are continuing the revolution, substituting their values and
political agenda for those of the people.
Tom Jipping is the director of the Free Congress Foundation's
Center for Law and Democracy (http://www.FreeCongress.org)
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